Tuesday, June 8, 2010

Blessed Are the Oddsmakers

He has never lost a criminal case either as a prosecutor or a defense attorney.

At least, that's what's said about Gerry Spence. Not by some neutral authority who's actually examined the records, you understand. It's what Spence claims (albeit in the third person) on his website.

Is it true? At People v. State a couple of weeks ago, John Kindley made some effort to parse the claim and suggests that if it's not exactly a lie, it's not exactly the whole truth, either. But winning and losing in criminal law often has that sort of impurity.

Dow tells of Van Orman, an innocent man on death row. He simply didn't commit the crime. He's also got mental retardation. Dow proves the retardation and gets him off the row. Now the innocent man will do life in prison.

But I'm a death-penalty lawyer and Van Orman won't get executed, so I count it as a victory. One of my clients committed suicide a week before his execution. That's a victory. Another died of AIDS. A victory.

You bet. I had a client who died of hepatitis right after I filed the papers asking the U.S. Supreme Court to hear the case. He died before the state had a chance to reply, certainly before the Court ruled. That goes down as a win. That's how it works when you're doing death penalty defense. Whenever the government doesn't murder your client, you've got a win.

All of which is a way of saying that in this business, winning often isn't an all-or-nothing proposition. Confession suppressed? Win. Even if the drugs aren't suppressed? Yep. Just not a complete win.

Get some of the charges dismissed? Win. Even if the client's found guilty of some things? Yep. Just not a complete win.

Get a five year sentence? Win if the client might have gotten 8. Or 50.

LWOP? Win if the alternative was death.

Continuance? Hung jury? Wins. Even if they're only temporary. (The old line is that a continuance is as good as an acquittal - it just doesn't last as long.)

Client goes home after a not guilty verdict? Big Win.

And on it goes.

The key isn't that what counts as a win depends. The key is that you need to have a sense of things.

Most trials result in guilty verdicts. But most cases aren't tried; they're resolved by pleas of one sort or another. The idea of the plea is that it's a compromise because trials are problematic. They're a lot of work and they are, ultimately, uncertain. Anyone who's been at this for a while can tell you that juries and judges sometimes surprise. We win (whatver that means) some cases we should lose. We lose (whatever that means) some cases we should win. The jury, the judge, the world sometimes just gets it wrong. (Ask Jim Joyce or Armando Gallaraga.)

In the end, we're oddsmakers. Our first job is first to investigate (the charges, the evidence, the facts, the law, the ideas the lawyer and the client have), then to evaluate. After the evaluation is the heart-to-heart with the client.

Here's what to expect. The evidence will play out this way. The judge will let them get away with this. The judge will slam them if they try that. If we do the other, we might screw up their game plan. But the video tape. So the likelihood is that . . . .

So now we know what we think. Is there an offer? Is it one we'd be inclined to take? Regardless, it goes to the client to decide. But with a recommendation. Maybe we recommend really hard. Really, really hard. Maybe not. (That's partly a question of how the lawyer sees the role and partly a question of the quality of the offer.) But it's the client's call. The client's life.

So maybe an offer gets taken. Maybe not. Maybe there's a counter offer. Or a better one down the road. Or maybe it's trial.

Some cases are, of course, better (or worse) than others. Some lawyers, too. But the general process is pretty much always going to be something like that.

But what happens if, it turns out, we're altogether incompetent at predictions? If outcomes are based on our skill at accurately predicting the odds of winning (whatever that means) or losing (whatever that means), and if we suck at the job of oddsmaker, then what. Our clients suffer, of course. But what if everyone sucks at it?

There's a new study. It's basic conclusion is that lawyers aren't particularly good at predicting outcomes. Most lawyers are overoptimistic. Here's the abstract.

Lawyers’ litigation forecasts play an integral role in the justice system. In the course of
litigation, lawyers constantly make strategic decisions and/or advise their clients on the
basis of their perceptions and predictions of case outcomes. The study investigated the
realism in predictions by a sample of attorneys (n 481) across the United States who
specified a minimum goal to achieve in a case set for trial. They estimated their chances
of meeting this goal by providing a confidence estimate. After the cases were resolved,
case outcomes were compared with the predictions. Overall, lawyers were overconfident
in their predictions, and calibration did not increase with years of legal experience.
Female lawyers were slightly better calibrated than their male counterparts and showed
evidence of less overconfidence. In an attempt to reduce overconfidence, some lawyers
were asked to generate reasons why they might not achieve their stated goals. This
manipulation did not improve calibration.

David Post, posting (sorry) at The Volokh Conspiracy, finds confirmation in this.

I’m constantly amazed, given the obvious fact that half of all litigants are holding losing hands, at how easily most lawyers can persuade themselves of the rightness of their client’s cause.

But of course expecting to win isn't the same as imagining that your client (or your client's "cause") is right. It's a calculation, once again, based on law and investigation and perceived skill (one's own, and also opposing counsel's) and a dozen other tangible and intangibles. Post is an academic. His view of the study, not surprisingly, is an academician's (even if he misses a point along the way), not a practitioner's.

Gideon's take, the take of a practitioner, is that we can use the study.

There is a cautionary tale here and something to be learned. No matter our desire to test the latest theory or try a new creative challenge or approach to the “type” of case we have before us, we must remember one thing: client’s cases are not grounds for experimentation. In our field, if we are wrong, someone goes to jail – and often for a very long time.
The client is, in a sense, blind. They rely on us to counsel them, to lay out the alternatives, the pitfalls and how best to navigate them. We are useless if we are blinded by overconfidence.
It is incumbent upon us to offer educated advice and only offer that when we are ready. If there’s one thing I’ve learned that I can deign to share with the rest of the world, it is that there is no such thing as a sure fire win in criminal law. If you don’t think you can lose, you will.

Sure enough, and good advice.

But, and I asked this question earlier, what if everyone sucks at prediction? If we're all overly optimistic, is the result a wash? That's partly an academician's sort of question. But it matters to practitioners, too, because the other lawyer's skills and perceptions are central to how the bargaining (and most cases, remember, end with bargains) works.

Except it isn't a wash because the deck is stacked.

My client can accept or reject an offer. My client can even suggest one. But it's prosecutor who holds the cards. Ultimately, the prosecutor drives any bargaining while the client bears the more serious risk.

They say that if you don't have the facts, you pound the law. If you don't have the law, you pound the facts. If you don't have the facts or the law, you pound the table. That's cheap and simplistic. When you have neither, you have to discover new facts or new law or find new ways of shaping the ones you've got. But you can't do that unless you can calculate the odds. And figuring out what it means, in your case, to win.

3 comments:

Interesting post. I naively tried to keep my win/loss record (just for kicks and just for myself) when I first started out. I quickly learned it was virtually impossible to do.

That our expectations on the prospects for success are often horribly out-of-whack with reality should also come as no surprise. I've read similar things about the miscalculations of heads of government about to commit their nations to war.

Let's see: Hitler thought he could successfully invade Russia. Napoleon, too. Japan had this idea about Pearl Harbor. France and then the US went into Vietnam. We went into Iraq and Afghanistan for quick and clean - and quagmire.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.